0652-98-ES Rainbow Concrete Ltd., Applicant v. Michael Dupuis and Ministry of Labour, Responding Parties.
0653-98-ES Rainbow Concrete Ltd., Applicant v. Gilbert Anishnabie, Douglas Chevrier, Bernie Commanda, Maurice Commanda, John D. Goulais, Brian Bellefeuille, Robert Commanda, Alex Lariviere, Paul Dupras, James Lariviere, Ronald Henry McLeod, Derrick Restoule, John Stevens, Pierre Beaulac, Diane Bednarz, Darryl Blay, Martin Champagne, Bruce Cunningham, William Foisey, Bruce Gardiner, Stephen Hanselman, Rick Heise, Glen Holliday, John Holmes, Andre Houle, Gilles Legault, Michel Martel, Craig McLeod, Michael Myers, Herbert Padley, Raymond Penasse, Brent Perkins, Carole Proulx, Kathy South and Mel Straus and Ministry of Labour, Responding Parties.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD: February 21, 2000
The Board has received a request for reconsideration from the applicant regarding the decision of January 24, 2000 in which the applicant’s request for an extension of time for filing these applications was denied and the applications were dismissed.
In its request for reconsideration the applicant (“Rainbow Concrete”) relies on its letter of November 5, 1999 to the Board, and a copy of a decision of the Ontario Court of Appeal dismissing Rainbow Concrete’s motion for leave to appeal a judicial review decision. Since the reconsideration application has been made following the promulgation of the Board’s new Rules of Procedure in August 1999, this matter will be dealt with pursuant to the Board’s current power to reconsider its decisions in employment standards matters.
The Board has a long-established body of jurisprudence outlining the standard it applies in considering reconsideration requests. In John Maggio Excavating Ltd., [1994] OLRB Rep. Jan. 31, the Board described the threshold test as follows:
… As a general proposition, the Board will not reconsider a decision unless a party intends to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence, and where such evidence, if adduced, would be practically conclusive of the case. Alternatively, the Board may reconsider its previous decision if a party intends to raise objections or make representations which were not already considered by the Board and which the party had no prior opportunity to raise. The rationale for the narrow limits imposed on the exercise of the Board’s power to reconsider its earlier decision is obvious – only if Board decisions are considered to be final can they be relied upon as establishing the rights as between the parties.
In Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922, the Board also stated as follows at page 927:
Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed in the Board’s jurisprudence. See for instance, Silverwood Dairies, [1977] OLRB Rep. June 392.
The Board will consider the applicant’s request for reconsideration against this jurisprudential backdrop. These applications are not ones in which a hearing was held so there is no issue of a party intending to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence. The applicant is seeking to have the Board extend the time limits for the filing of applications to appeal the Orders to Pay issued by an Employment Standards Officer. As was noted earlier, the applicant is relying on its letter of November 5, 1999 in its reconsideration application. The Board made its decision of January 24, 2000 having regard to that very letter. Indeed, it is specifically referenced in paragraph 2 of the decision, and was the reason that the Board issued the January decision. That is to say, the January decision is reflective of the Board’s consideration of the request made in the November 5th letter. Thus, it would seem that the applicant is yet again seeking to reargue its request.
The Board has fully addressed the applicant’s November 5, 1999 letter and will not reiterate its reasons for denying the request for an extension of the time limits for the filing of a request for review of an Order to Pay. The decision of January 24, 2000 speaks for itself.
The fact that the Court of Appeal has denied Rainbow Concrete’s motion for leave to appeal the Divisional Court’s decision of September 28, 1999 is immaterial to the Board’s decision of January 24, 2000. The effect of the Court of Appeal’s decision is that the Divisional Court’s decision stands as it is. The Board relied on the Divisional Court’s decision, and as such, nothing has changed so there is no reason to revisit the Board’s earlier decision.
Rainbow Concrete asks that the Board reconsider its original decision to issue the outstanding Orders to Pay and the final calculation of its numbers cited in the Orders to Pay. The applicant has fundamentally misunderstood the process and the roles of the various entities involved. The Board has no role in the issuance of Orders to Pay. Individuals make complaints to the Ministry of Labour regarding some matter that is governed by the Employment Standards Act. An Employment Standards Officer investigates the complaint and either dismisses it or issues an Order to Pay in favour of the complainant. An employer can either pay the amount of the Order, or make application to the Ontario Labour Relations Board for review of the Order to Pay. Only if an application for review is made in accordance with section 68 of the Act can the Board consider the matter, and it then does so de novo. The Board neither issued the Orders to Pay nor performed any calculations to arrive at the quantum of the Orders in this case.
The remainder of the request for reconsideration is a reiteration of the applicant’s earlier correspondence to the Board and has already been addressed in the January decision. A request for reconsideration is not an opportunity to re-state one’s case, but that is what Rainbow Concrete is again attempting to do. The applicant’s references to cases that it believes are relevant are of no assistance to the Board’s consideration of this reconsideration request and are a further attempt by Rainbow Concrete to argue the merits of its appeal. Since the Board has declined to grant an extension for the filing of an appeal, there is no reason to consider the actual merits of the matters Rainbow Concrete would like the Board to hear.
DISPOSITION
- For all of the above reasons the request for reconsideration of the January 24, 2000 decision is hereby denied.
“Gail Misra”
for the Board